The China Studies Centre and the Centre for Asian and Pacific Law hosted the 2014 Annual Workshop on Chinese Law on 3 and 4 October, focusing on early judicial and legal reforms under the Xi Jinping administration.

Despite general interest in the economic rise of Asia and in the role of law in the development of the region, the literature on comparative corporate governance in Asia is surprisingly undeveloped with respect to in-depth comparisons among Asian countries. In particular, it should be both valuable and feasible to compare and contrast corporate governance systems and practices among countries in East Asia, in light of Japan’s historical influence and more recent divergences from that influence.

At a recent conference a distinguished group of corporate law scholars from Japan, Korea, Taiwan, and China engaged in a broad-ranging panel discussion centering on the question of the operation and reform of traditional stakeholder-oriented corporate governance systems featuring concentrated ownership and a board of directors involved in day-to-day management against the need to account for greater monitoring of management on behalf of shareholders.

This seminar highlighted both the challenges and significant potential rewards for greater scholarly collaboration in making cross-Asian comparisons in the field of corporate governance.

About the speaker:Bruce Aronson is a professor of law at Hitotsubashi University’s Graduate School of International Corporate Strategy. He received his undergraduate degree from Boston University and his JD from Harvard Law School in 1977. Professor Aronson was a corporate partner at the law firm of Hughes Hubbard & Reed LLP in New York (1989-2000) and a professor of law at Creighton University (2004-2013). He has also engaged in research and teaching at a number of US law schools including Columbia (2002-2004), Michigan (2004), Boston University, and Georgetown. His experience in Japan includes research as a Senior Fulbright Research Scholar at the University of Tokyo (2000-2002) and at Waseda University (2011-2013), the first holder of the Chair on International Capital Markets Law at the University of Tokyo (2004), and a Visiting Scholar at the Bank of Japan (2010). His main area of research is comparative corporate governance with a focus on Japan. He also acts as an advisor to the law firm of Nagashima Ohno & Tsunematsu.

Indonesians go to the polls to choose legislative candidates on 9 April 2014 and presidential candidates in July. This seminar examined the role the Court is likely to play in resolving disputes about the results of both elections. If the Court’s decisions in regional head election disputes are any guide, the Court is likely to be inundated with contested results and might invalidate polls if presented with enough evidence of ‘money-politics’, administrative incompetence or incumbents attempting to ensure their own re-election or the election of a family member. The Court might then order elections to be conducted again and could even disqualify candidates. Yet all this will happen at a time when the legitimacy and authority of the Court is at a low ebb, given the arrest in October 2013 and prosecution from February 2014 of its then-serving Chief Justice, Akil Mochtar. The result is likely to be significant delay and contestation over the final results of both elections and the Court’s decisions.

Please join us for the book launch of Asia-Pacific Disaster Management: Socio-Legal and Comparative Perspectives, co-edited by Simon Butt and Luke Nottage (Sydney Law School) and Hitoshi Nasu (Australian National University, College of Law). The book will be launched by The Hon Robert McClelland, former federal Attorney-General and Minister for Emergency Services.

About the Book:The book outlines the regulatory environment for disaster prevention and management in broad social, economic and political context. The first half of the book focuses mainly on Japan, especially the '3.11' events: the earthquake and tsunami that devastated the Tohoku area on 11 March 2011 and the Fukushima Daiichi nuclear power plant radiation leaks. The second half focuses on the USA (the only other Asia-Pacific country to have experienced a serious nuclear emergency), Indonesia, China, New Zealand, Australia and international law. One question explored in several of the 14 chapters is whether socio-legal norms play different roles in preventing and managing responses to natural disasters compared to 'man-made' disasters. Another is how 'disaster law' interacts with society across very diverse communities in the disaster-prone Asia-Pacific region. The book also addresses the increasingly important roles played by international law and regional regimes for cross-border cooperation in disaster prevention and relief, including the functions played by military forces.

This symposium compared the comprehensive reforms recently proposed for Japan's Civil Code, likely to be enacted in 2014, with contract law reform initiatives and possibilities in Korea, China, Indonesia and Australia.

Speakers:Professor Luke Nottage, Sydney Law SchoolProfessor Andrew Pardieck, Southern Illinois University School of Law  Slides (pdf)Professor Kenji Saigusa, Waseda University Law Faculty  Slides (pdf)Professor Jeong Jonghyu, Chonnam National University Faculty of Law  Paper (pdf)Professors Yang Lixin and Yao Hui, Renmin University Law SchoolProfessor Liu Baoyu, Beijing University of Aeronautics and Astronautics School of LawDean Paripurna Sugarda, Gadjah Mada University Law Faculty

Sydney Law School students are invited to attend this seminar featuring Mr Geoff Sutherland the former Special Counsel and Head of the Vietnam Practice for Norton Rose Fulbright, and Professor Vivienne Bath of Sydney Law School to hear about their experiences working as lawyers in Vietnam, China and Hong Kong.

About the speakers:Geoff Sutherland was Special Counsel and Head of the Vietnam Practice for Norton Rose Fulbright, and foreign legal counsel with Vision & Associates, one of the largest Vietnamese commercial law firms with offices in Ho Chi Minh City and Hanoi, from 2009 until July 2013. In Vietnam, Geoff advised on a wide range of legal issues, including foreign investment, climate change, competition, anti-trust, M&A, banking and finance, dispute resolution, technology transfer, intellectual property, trade, labour law, foreign exchange, property and construction, and taxation. He was a board member of the Australian Chamber of Commerce in Vietnam.

Vivienne Bath is Professor of Chinese and International Business Law, and Director of the Centre for Asian and Pacific Law at the University of Sydney. Prior to joining the Sydney Law School she was a partner of international firm Coudert Brothers, working in the Hong Kong and Sydney offices, and specialising in commercial law, with a focus on foreign investment and commercial transactions in the People's Republic of China.

From financial markets, to environmental policy and disaster preparedness, to academic thought, one of the defining features of the moment is our ambivalence about experts and expertise. To the public, as to experts themselves, the world seems highly uncertain, unknowable, uncontrollable, which is to say, expert tools for predicting and regulating the world do not seem to work as they should. Many of the experts I have studied over the last ten years seem to be losing hope in their own techniques, and their sense of their powerlessness to solve problems can lead to cynicism and disengagement.

Yet in my ten years of ethnographic research among one particular group of experts–lawyers working the financial markets–I have observed many subtle but formidable ways of thinking and acting under conditions of profound uncertainty that offer an enticing view of an alternative approach to the role of experts in contemporary political life. In this lecture, I discuss how these subtle techniques can be “retooled” into ways of responding professionally, politically and ethically to the demands of our political moment. I focus in particular on how to build a more transformative dialogue between experts and the broader public.

Annelise Riles is the Jack G. Clarke Professor of Law in Far East Legal Studies and Professor of Anthropology at Cornell University, and she serves as Director of the Clarke Program in East Asian Law and Culture. Her work focuses on the transnational dimensions of laws, markets and culture across the fields of comparative law, conflict of laws, the anthropology of law, public international law and international financial regulation.

9 May 2013

Sydney Law School Distinguished Speakers Program:Rule of Law and the Independence of the Judiciary in Malaysia: New Government, Old Government, does it really matter?

Speaker: Zaki Tun Azmi, former Chief Justice of Malaysia

On 5 May 2013, the Malaysian people will elect another government. According to opinion polls and the rumour mill, Malaysia could be about to have its own 'spring' and usher in to power a new coalition. But whatever the result, a new political landscape is forming, old loyalties are shifting and a younger generation is expecting more of those who govern them.

The Malaysian judiciary has often been in the firing line. In the 1980s, during the tenure of former Prime Minister Mahathir Mohamed, the torch of judicial independence appeared to shine brightly with the judges expanding grounds for judicial review and acting with the temerity to declare UMNO, the dominant member of the ruling 'National Front', an 'illegal organisation'. In the eyes of overseas commentators at least, that spirit of independence was short-lived with the Malaysian Supreme Court (then, its apex court) effectively 'sacked' in 1988, then 'stacked' with known party stalwarts and subsequently 'stripped' of its inherent jurisdiction by constitutional amendment. A decade later, political machinations reached their zenith in the prosecution and subsequent conviction, by judges not by jury, of then Deputy Prime Minister, Anwar Ibrahim. In the 'noughties', following the revelation of the 'Lingam Tapes', matters went from bad to worse with the 'rigging' of judicial appointments and the coming to light of a 'corrupt' judiciary.

There are, of course, two sides to every story, but the above impression of the Malaysian judiciary has endured at home and lingered overseas notwithstanding a series of recent reforms and measures designed to restore the judiciary's reputation and the credibility of the Malaysian legal system.

This talk, given by an insider, Zaki Tun Azmi, a recently retired and 'reformist' Chief Justice of Malaysia, explored these issues and discussed, through questions and answers, his opinions of where the future might lie regarding the independence of the judiciary in his country, and ultimately the 'rule of law'.

About the speaker:Zaki Azmi was the 12th Chief Justice of Malaysia. He was elevated directly to the apex court as a Judge of the Federal Court in September 2007. Shortly thereafter, Zaki Azmi was appointed President of the Court of Appeal. Prior to his elevation to the Federal Court, Zaki Azmi had served for 15 years in the Judicial and Legal Service and was in private practice for another 22 years. He read law at Lincoln's Inn and was called as a Barrister in 1969.

Zaki Azmi is nationally and internationally recognised and acknowledged as instrumental in introducing reforms to the Malaysian judiciary. The sweeping reforms that were implemented by the Zaki Court resulted in the clearing of backlog of cases, the introduction of the use of up-to-date technology in the courts and the putting in place of an efficient system for the disposal of cases, from the time of filing of an action to the disposal of the final appeal. As a result of these successes, Zaki Azmi was invited by distinguished bodies such as the Singapore Academy of Law to speak on and share his experiences with the international legal community on the subject of reform of the judiciary.

His service to his nation extends beyond the legal sphere. After his retirement as Chief Justice, Zaki Azmi was appointed the Chairman of the Civil Service Transformation Commission by the Government of Malaysia. His contributions and services in the field of education are evident from his appointments as Chancellor of two private universities and Adjunct Professor in three other public universities in Malaysia.

Zaki Azmi's pre-eminence in the field of law has been recognized with accolades by both domestic and international bodies. He was made Honorary Bencher of Lincoln's Inn and conferred with the Honorary Doctor of Laws degree by two local universities.

ASEAN is no longer an association of neighboring countries, it is becoming one integrated market.With the creation of a single market by 2015 (ASEAN Community 2015), barriers to entry in local markets are being loosened, global law firms are focusing on ASEAN. This talk will look at what it takes to be a regional law firm in ASEAN and the steps one particular Malaysian law firm has undertaken to achieve that.

About the speaker:Dato' Dr Nik Norzrul Thani is chairman of Zaid Ibrahim & Co, Malaysia's largest and only international law firm, with offices in Singapore, Bangkok and Dubai as well as associate offices in Jakarta, Hanoi and Ho Chi Minh City, Vietnam. He is also chairman of ZI Shariah Advisory Services, an affiliate company of Zaid Ibrahim & Co that provides legal and advisory services on Islamic law. ZI Shariah has also obtained recognition from the Malaysian Securities Commission as an approved Shariah Adviser.

Dato' Dr Nik graduated with LLB (Hons) from University of Buckingham, LLM from Queen Mary College, University of London and PhD in Law from the School of Oriental and African Studies (SOAS), University of London and is a Barrister of Lincoln's Inn. In addition, he also possesses a post-graduate diploma in Syariah [shariah] Law and Practice (with distinction) from the International Islamic University Malaysia. Dato' Dr Nik is also a Fellow of the Financial Services Institute of Australasia (FINSIA) and Chartered Institute of Marketing (UK). He was formerly the Deputy Dean of the Faculty of Laws, International Islamic University Malaysia. Prior to joining Zaid Ibrahim & Co he was practising with the international law firm, Baker & McKenzie.

He is the author of Legal Aspects of the Malaysian Financial System and the co-author of The Law and Practice of Islamic Banking & Finance and Law & Practice of Islamic Corporate and Investment Finance. Dato' Dr Nik is also co-authoring a book entitled Islamic Finance – Products and Concepts which will be published by John Wiley & Sons (Asia) Pte Ltd.

23 Oct 2012

Seminar: The application of ‘informal’ international instruments before domestic courts: The case of Japan

Speaker: Machiko Kanetake, Amsterdam Center for International Law (ACIL)

Every year a voluminous number of international instruments, which are neither part of treaties nor of customary international law, are produced by international organisations, treaty-monitoring bodies, informal gatherings of states, and transnational private organisations. Many of these instruments are adopted with the expectation that certain actions should be taken at the domestic level. In this presentation, Machiko Kanetake discussed the application by domestic courts of ‘informal’ international instruments, which are neither internationally binding, nor formally given effect under domestic law.

More specifically, she talked about (i) the kind of instruments employed by the courts, (ii) the purposes for which instruments are used, and (iii) the possible justification for the authority of domestic courts to employ informal instruments. In this seminar she focused on the case of Japanese courts, and referred to other states’ practices for comparative purposes.

In general, Japanese courts are reluctant to employ informal international instruments in their reasoning. Nevertheless, there are several noteworthy court decisions, especially in lower courts, which have found the interpretive use of informal instruments, such as General Comments issued by the UN Human Rights Committee and UN General Assembly resolutions. From the limited survey of domestic court decisions, this presentation demonstrated that the domestic courts have not been unaffected by the international expectation towards domestic organs to materialise informal international instruments within the domestic legal order.

About the Speaker:Machiko Kanetake is a Postdoctoral Researcher at the Amsterdam Center for International Law (ACIL). She specialises in United Nations law, international organisations law, and interactions between national and international law. At the ACIL, she coordinates the research project on the interfaces between international and national legal orders. As part of the project, she has been conducting research on the application of international law and informal international instruments before Japanese courts.

Machiko received her Ph.D from Kyoto University, and LLM from the London School of Economics and Political Science (LSE). During her doctoral study, she was appointed as a Hauser Visiting Doctoral Researcher (2010-11) of the Global Fellows Program at New York University (NYU) School of Law.

Sydney Law School Distinguished Speakers Program:Foreign Investment, the National Interest and National Security - Foreign Direct Investment in Australia and China

Speaker: Professor Vivienne Bath, Sydney Law School

China and Australia are both recipients of considerable amounts of inbound investment and maintain policies designed to encourage and attract it. Both countries are, however, considered by the OECD to maintain restrictive policies towards the admission of inbound investment. In addition, Chinese and Australian companies invest extensively overseas, including, in the case of Chinese companies, in Australia, where the extent and nature of foreign - particularly Chinese - investment in natural resources and rural land is increasingly controversial. The policies of the Australian and Chinese governments in relation to the admission of foreign direct investment ('FDI') both rely heavily on concepts of the national interest (in the case of Australia) and national security (in the case of China). Australia maintains a case by case screening regime based on a 'national interest' test; China has a detailed, highly regulated investment structure and review process which draws on concepts of 'national security' and 'national economic security', and has recently added an extra case by case review of certain foreign acquisitions on the basis of a "national security" test. In this lecture, Professor Bath examined and compare the development and definition of concepts of national interest and national security - including the role of public opinion in both countries - and discussed the role they play in the admission of FDI in Australia and China.

About the Speaker:Professor of Chinese and International Business Law and Director of the Centre for Asian and Pacific Law at the University of Sydney. Prior to joining the Faculty of Law, Vivienne Bath was a partner of international firm Coudert Brothers, working in the Hong Kong and Sydney offices, and specialising in commercial law, with a focus on foreign investment and commercial transactions in the People's Republic of China. She previously practised as a commercial lawyer in New York and Sydney, and worked in the Federal Office of Parliamentary Counsel as a parliamentary draftsman.

Vivienne Bath has published widely in the area of Chinese law and is a frequent participant in conferences and seminars focussing on developments in the Chinese legal regime.

International Arbitration in UNCITRAL Model Law Jurisdictions: Comparing Recent Developments in Japan

This seminar discussed recent case law and other topics related to international commercial arbitration in Japan, of particular interest from an Australian perspective, including: the standard of reasoning required from arbitrators, challenges to awards based on public policy or inability to present one's case, time limits for bringing challenges, interim measures, enforceability of multi-tiered dispute resolution agreements, confidentiality, and "Arb-Med" (legal and practical issues involved when arbitrators facilitate settlement, as is still quite frequent in Japan).

The seminar also touched on some developments in other jurisdictions that have adopted the UNCITRAL Model Law for their arbitration legislation, especially the recent decision regarding Arb-Med rendered by the Hong Kong Court of Appeal in Gao Hai Yan & Anor v Keeneye Holdings Ltd & Ors [2011] HKEC 514.

Speaker: Professor Tatsuya Nakamura specialises in international dispute resolution and ADR, especially arbitration. He is Professor of Law at Kokushikan University in Tokyo and General Manger of the Arbitration Department of the Japan Commercial Arbitration Association. His publications include Japanese Arbitration Law Q&A (2004), International Business Disputes - Arbitration, Mediation and Negotiation (2012), and many articles and books in Japanese and English - including a chapter (with Luke Nottage) on Japan in Tom Ginsburg et al (eds) Arbitration in Asia (3rd ed. 2012, also at http://ssrn.com/author=488525). Prof Nakamura helped enact Japan's Arbitration Law 2003, as a member of the Consultative Committee of Experts on Arbitration for the Japanese Government's Office for Promotion of Justice System Reform. He is also on the International Arbitrators Panel of the Korean Commercial Arbitration Board.

University of Sydney International Forum: Catalysing Pacific Engagement

A one-day forum to build partnerships with the Pacific Region.

Hosted by the Pacific Expert Group, the forum discussed the University's current Pacific initiatives and explored partnerships to support the Pacific region in tackling the challenges of the 21st Century.

Keynote Speaker was Dr Jimmie Rodgers, Director-General of the Secretariat of the Pacific Community. Thematic seminars focused on Law and Economic Development, Health Needs and Priorities, Sustainable Resource Management and Education Partnerships and Policy.

3 Aug 2012

Ross Parsons Corporate Law Seminar Series:Dynamics of Corporate Governance in East Asia: a focus on China, Japan and Korea

Professor Kim's address analysed recent developments in corporate governance in three East Asian countries, China, Japan and Korea. These countries have been, and still are, closely intertwined with each other, culturally, historically and economically.

From the perspective of corporate governance, it is noteworthy that each country has gone through (or, in the case of China, is still in) a period of economic growth initiated by the government. Despite this common ground, realities of corporate governance vary substantially among the three jurisdictions. Differences in corporate governance do not seem to be due to differences in the level of economic development. Moreover, although corporate governance in all these countries has been subject to the winds of change, the pattern of this change differs country to country. Professor Kim's address considered some of the forces causing and obstructing corporate governance changes.

Socio-Legal Norms in Preventing and Managing Disasters in Japan: Asia-Pacific and interdisciplinary perspectives

This conference compared the preparedness for large-scale disasters and subsequent responses in Japan, focusing on the '3-11' events: the earthquake and tsunami that devastated north-east Japan on 11 March 2011 and the Fukushima Daiichi nuclear power plant radiation leaks. We explored whether and how socio-legal norms may have differed significantly within Japan regarding the former, primarily a natural disaster; compared to the latter, a 'man-made' or artificial disaster.

The conference focused on the legal or regulatory environment, but in broad social, economic and political context. It brought together experts in relevant fields of domestic and international law as well as specialists in social history and literature, media studies and political economy. One working hypothesis was that cultural and social norms were more effective in helping both to prevent and manage responses to Japan's natural disaster, compared to the artificial disaster where political and economic factors played more significant roles. The project considered whether this phenomenon could be found in earlier periods and especially in other Asia-Pacific countries, particularly in China, Indonesia and New Zealand (susceptible to earthquakes and tsunamis), and the USA (the only other Asia-Pacific country to have experienced a serious nuclear emergency).

29 Nov 2011

China Studies Centre - Sydney China Business Forum 2011

The Sydney China Business Forum addressed global and strategic China business issues of importance to Australia by bringing together Australian and Chinese thought leaders and decision-makers to discuss emerging opportunities and challenges and to devise strategic responses.

Cocktail reception for attendees of the International Politics of Resources workshop which was held at the University of Technology, Sydney from 28-29 July 2011.

CAPLUS hosted a cocktail reception at Sydney Law School on the evening of Wednesday 27 July 2011 for attendees of the workshop titled: International Politics of Resources: China, Japan and Korea's Demand for Energy, Minerals and Food which was held at the University of Technology, Sydney from 28-29 July 2011.

Speaker: Associate Professor Xia Fei, East China University of Political Science and Law

Police power control has become a hot issue in China in recent years. In this seminar, Professor Xia Fei discussed the police power of administrative management, the police power of criminal investigation and the improvement of the police power control system in China.

Dr Xia Fei is an associate professor of East China University of Political Science and Law. Her academic research field is criminal justice, especially the policing issue. She is the co-author of two books, Study on Order Maintenance and The history of Criminal Law in Western Countries. Her new book The Change of Police Power in England and Wales will be published in June. Professor Xia’s recent articles include: "The Change of Crime Reason and the Challenge to Police work", from Study on Order Maintenance, Edited by Guo Taisheng, 2010; and, "The Transplantation of the Police System from the West in the Late Qing Dynasty", Journal of XinJiang Police Officers' Academy, 2008(4).

CAPLUS associates participated in a symposium jointly organised by the Centre and the University of Hawai‘i in Honolulu.

8 Apr 2011

Lecture: 'Ahmadiyah and religious tolerance in Indonesia'

Speaker: Professor Dr Iur Adnan Buyung Nasution

Professor Nasution discussed religious tolerance and the law in Indonesia, focusing on the persecution of Indonesian Ahmadis.

Professor Dr Iur Adnan Buyung Nasution is widely regarded as Indonesia's leading advocate and trial lawyer. He is a pioneer of legal aid and law reform, as well as being a key figure in the development of human rights law and constitutionalism in Indonesia. Early in 2007, Dr Nasution was appointed to Indonesia's Presidential Advisory Council, a highly prestigious constitutional body. In 2010, he was appointed an Honorary Professorial Fellow of Melbourne Law School.

5 Apr 2011

Seminar: 'The role of CSR in shaping labour's voice at the Malaysian workplace and the evolution of a constitutionalised contract of employment'

Speaker: Dr Vanitha Karean, Monash University Sunway campus, Malaysia

In this seminar, Dr Vanitha Karean analysed the path dependence phenomenon within Malaysian labour law and exposed the underlying institutional defects within the Malaysian regulatory system for labour.

The potential for corporate social responsibility (CSR) initiatives in generating change at the Malaysian workplace was examined in the light of emerging case law developments and theoretical models on the right to livelihood within the Malaysian Constitution. The focus of the discussion was on the changing nature of labour norms in individual employment law, the advent of human rights reasoning and the interdependence of the organic forces in a particular jurisdiction that drive the labour agenda. The discussion concluded with an argument in praise of soft law within CSR codes as a viable agent for driving change in hard labour law, whilst maintaining its soft law character, thus contributing to the varieties of hybrid labour regulation.

Dr Vanitha Karean is a senior lecturer with Monash University at their Malaysian campus. Her teaching and research interests are in comparative employment law and comparative public law. Her PhD thesis, completed at the University of Queensland, examined the protection of individual employment rights from a human rights perspective by introducing new theoretical models towards balancing the interests of employers and employees. Some of these theoretical models that form continuing areas of her research are constitutional constructs of horizontal private law rights emanating from the Constitution and the expanding role of implied terms within the employment contract. Dr Vanitha Karean is also currently a pro-tem committee member of the Malaysian Chapter of the International Society of Labour and Social Security Law.

One of the world’s leading scholars in comparative and Asian law and constitutionalism examines paths towards "judicialisation" and other institutional transformations particularly in Japan, Korea and Taiwan since the 1990s.

In recent years, major programs of legal reform have been undertaken in Japan, Korea and Taiwan. Before 1990, these systems shared a common set of institutional structures that Professor Ginsburg describes as the Northeast Asian Legal Complex with three elements: a professional, somewhat autonomous and competent court system organized hierarchically; a small, cartelized private legal profession without much independent political influence; and administrative law regimes that insulated bureaucratic discretion exercised by developmental regimes. As legal reform has been undertaken it has naturally caused some recalibration in these institutional structures. Yet notwithstanding differences in pace and timing, as well as in the style of reform, there is remarkable similarity in the reform outcomes. This lecture argues for the importance of region as a determinant of reform outcomes, even as national styles and processes differ.

Tom Ginsburg is Professor of Law at the University of Chicago, where he works on comparative and international law from an interdisciplinary perspective. He holds BA, JD and PhD degrees from the University of California at Berkeley. His recent co-authored book, The Endurance of National Constitutions (2009), won the best book award from the Comparative Democratization Section of the American Political Science Association (APSA). His other books include Judicial Review in New Democracies (2003), Administrative Law and Governance in Asia (2008), and Rule By Law: The Politics of Courts in Authoritarian Regimes (with Tamir Moustafa, 2008).

The scope of jurisdiction of investment tribunals is a crucial question which often leads to protracted arguments in the course of arbitration proceedings. In recent years an increasing number of cases involved narrow disputes settlement clause in BITs which relate to the amount and mode of compensation in cases of expropriation. Tribunals have differed on the appropriate reading of such clauses, in particular, on whether they should be regarded as excluding the issue whether an expropriation has occurred in the first place. Some investment tribunals have relied on MFN clauses in order to extend their jurisdiction. This presentation will also assess the policy implications of broad versus narrow disputes settlement for host States.

August Reinisch is professor of international and European law at the University of Vienna and professorial lecturer at the Bologna Center/SAIS of Johns Hopkins University. From 2004 to 2006 and as of 2010 he was/is Dean for International Relations of the Law School of the University of Vienna.

He was a Member of the ILA Committee on International Law on Foreign Investment, and he is a member of the ILA Study Groups on Accountability of International Organisations, State Insolvency, and the Role of Soft-Law Instruments in International Investment Law. Professor Reinisch is president of the Austrian Branch of the ILA, Executive Board member of the European Society of International Law and of the German Society of International Law, as well as member of ASIL, ACUNS and other professional associations in the field of international law.

In addition to his appointments as arbitrator on investment tribunals, Professor Reinisch has served as legal expert in numerous ICSID and non-ICSID proceedings. He is a member of the Panels of Conciliators and of Arbitrators maintained by ICSID.

The last decade has seen an explosion in comparative corporate law scholarship. However, the vast majority of this scholarship has viewed comparative corporate law through a distinctly Anglo-American lens. This has left a significant gap in the literature, which has grown increasingly apparent with the (re)emergence of Asia as a juggernaut in the global economy.

In late July 2010, to begin to address this dearth in the scholarship, NUS (with Dan Puchniak as the principal investigator) organised a symposiumwhich included several of Asia’s leading corporate law scholarson the derivative action in Asia's leading economies. The derivative action was chosen as a logical entry point for beginning to develop the scholarship on comparative corporate law in Asia because all of Asia's leading economies have transplanted the derivative action from various foreign jurisdictions and invested considerable resources into reforming their transplants. However, in spite of the fact that all of Asia's leading economies have taken such efforts, there is no detailed analysis of how the derivative action functions in Asia's leading economies and to what extent significant similarities and differences exist across the region. The broad goal of the symposium was to fill this gap in the literature by producing a thought provoking book in the field of comparative corporate law focusing on derivative actions in Asia.

This seminar provided a summary of the key findings of the symposium and highlighted some of the significant points in the symposium book (entitled "Derivative Actions in Major Asian Economies: Legislative Design and Legal Practice")which will be published by Cambridge University Press in 2012. The seminar also provided a summary explanation of the factors which have resulted in Japan becoming a strange bedfellow with Delaware as the world's clear leader in derivative litigation. The finding that the enormous increase in shareholder litigation in Japan is driven by derivative actions that produce more direct financial costs than benefits for shareholders, companies and lawyers may surprise. The explanation of what actually drives such seemingly "economically irrational" actions is evidence that derivative litigation (and corporate law more generally) in Asia's leading economies can no longer be ignored outside of Asia.

Dan W. Puchniak is an Assistant Professor in the Faculty of Law at the National University of Singapore where he teaches Comparative Corporate Law, Japanese Corporate Law and Governance and Singapore Company Law. Dan is the past recipient of numerous academic awards including the Jean and Joseph McCombe Memorial Prize for placing first in his Bachelor of Arts Degree and the Japanese Ministry of Education, Culture, Sports, Science and Technology (Monbukagakusho) Scholarship to complete an LLM in International Economic and Business Law and an LLD at Kyushu University. Dan has published widely on comparative and Japanese corporate law and governance and is regularly invited to present his scholarship and lecture at leading law schools in Japan, South Korea, Mongolia, Australia, the US and Canada. His most recent research paper on shareholder litigation in Japan was selected for presentation at the Harvard-Stanford International Junior Faculty Forum. Dan is currently the ASEAN Convener for the Australian Network for Japanese Law and a member of the Editorial Board for the Max Planck Institute’s Journal of Japanese Law. Prior to entering academia, Dan worked as a corporate commercial litigator at Torys LLP in Toronto, Canada.

The Centre for Asian and Pacific Law held a workshop on Friday 29 October on Investment Law and Policy in Asia. The workshop was partly funded by a grant from the Institute of Social Sciences related to international investment and finance. The workshop featured papers given by the authors of a book to be published by Routledge Press and edited by Vivienne Bath and Luke Nottage entitled “Foreign Investment and Dispute Resolution Law and Practice in Asia”, which is based on papers given at the February conference on Investment Treaty Law and Arbitration held at Sydney Law School, and papers given by authors of articles to be published in a special edition of the Sydney Law Review in 2012 on “Investment and Finance in Asia”. The purpose of the workshop was to promote discussion of the content of the book chapters and papers, as well as general discussion of the area of investment and finance law in Asia.

28 Sep 2010

Seminar: 'Doing Business in Indonesia: A Legal Perspective'

Speaker: Professor A Zen Umar Purba, University of Indonesia.

Indonesia is Australia's nearest northern neighbour. It is an archipelagic state with more than 17,000 islands and 230 million people. It offers abundant natural resources for commercial exploitation.

By virtue of Law No. 25/2007 on Investment (the "Investment Law") all sectors in Indonesia are open to foreign investment, except for those included in the Negative Investment List. In 2010, the Indonesian government expanded the sectors open to foreign investment, including the fields of healthcare and agriculture.

The Investment Law was specially drafted to entice more foreign investment to Indonesia. The Law offers some investment facilities including tax, immigration service and import permission facilities. The Law does not distinguish between foreign and domestic investors: they both receive equal treatment. The Law requires that a joint venture company ("PT PMA") be established between a foreign company and local partner. Unlike in the past, the Law is silent on the divestment. In some sectors, a 100% foreign investment is allowed.

The new 2009 Mining Law makes eligible foreign mining companies which have established a PT PMA for a mining license, granted by the central or local government. Under this new law, there is no more contract of work between the state and foreign investors for mining of coal and other minerals.

As for oil and gas, foreign contractors are invited to do business either in upstream or downstream areas. For upstream activity, a foreign oil company is not required to establish a PT-PMA. It must only sign a production-sharing contract with BP MIGAS, a body especially instituted for that purpose.

As a member of WTO Agreement, Indonesia has developed its laws on IPRs in compliance to TRIPs Agreement. These IPR laws complement the Investment Law.

Mr A Zen Umar Purbar is a practicing lawyer in Ali Budiardjo, Nugroho, Reksodiputro (ABNR), one of Indonesia most highly-regarded law firms. He is also Professor of Law at the University of Indonesia.

22 Jun 2010

Seminar: 'Movie Justice: The Law in Early Chinese Movies'

Speaker: Professor Alison Conner, William S. Richardson School of Law, University of Hawaii.

Professor Conner has conducted a detailed study of the way in which the legal system is portrayed in Chinese movies in the first half of the 20th century, a time in Chinese history when China had only just adopted a more modern westernised legal system and begun to train the legal profession against a background of the Japanese invasion and internal unrest. Her presentation looked at the way in which the dynamic Chinese movie industry saw the law and lawyers in China during this period.

Alison Conner is Professor of Law and Director of International Programs at the University of Hawaii Law School. She is a specialist in Chinese law and legal history and has published widely in that area. She is also Secretary of the American Society of Comparative Law. Prior to becoming a legal academic, Professor Conner practised on Wall Street for 5 years. She has a JD from Harvard Law School and a PhD from Cornell University in Asian Studies, and is fluent in spoken and written Chinese.

3 May 2010

Seminar: 'China – Intellectual Property and Innovation: Law and Policy'

This seminar focused on current issues in Intellectual Property Law in China, in particular the Chinese Indigenous Innovation Policy and its implications for law, practice and policy in China. China’s obligations under the WTO in relation to intellectual property were also considered with a focus on actions taken against China under TRIPS.

International Investment Treaty Law and Arbitration Conference: Evolution and Revolution in Substance and Procedure

This major conference explored controversial issues in contemporary investment treaty law and practice, including emerging issues in the nature of investment treaties, evolving jurisprudential trends, and intersections with international commercial arbitration, trade regulation, environmental issues and foreign investment in Asia. The program included four plenary sessions and 14 concurrent panels with over 60 presentations from an exciting mix of senior and up-and-coming experts drawn from universities, government and private practice.

This second ANJeL CLE seminar aimed especially at Australian practitioners in Japan, as well as Japanese practitioners interested in Australian law and the economy, focused on developments in Australian and Japanese financial markets after the GFC as well as various implications of the recently amended Australia-Japan Double Tax Treaty.

The Fourth Consumer Law Roundtable: Consumer Law and Policy in the Asia-Pacific: Product Safety, Consumer Credit, Unfair Contracts, and Consumer Access to Justice

Consumer law reform has been notable in Japan since its 'lost decade' of economic stagnation over the 1990s, but also in Korea and other parts of the Asia-Pacific. Product safety has been a particular concern, highlighted by various safety failures in goods from China. But consumer overindebtedness has become a growing problem, and fed into booms and then busts in American and European property and financial services markets, now devastating the global economy. There is also broader awareness now of proliferating unfairness in the marketing techniques and terms included in other types of consumer contracts. Reforms to the substantive law also demand attention to consumer access to dispute resolution procedures and government agencies.

In April 2009 Japan created a new Consumer Affairs Agency to look at such problems more holistically and effectively, for example, while in February the Australian Treasury proposed a new 'Australian Consumer Law' regime to harmonise legislation and regulatory capacity within this country. These issues must also be considered in the context of burgeoning FTAs, particularly within the Asia-Pacific. For example, Australia already coordinates food safety standards with regulators in New Zealand, and this could be extended to other consumer goods and/or Australia's other FTA partners  including potentially Japan and Korea.

A grant from the ARC's Asia Pacific Futures Research Network helped to make these questions a major focus in the fourth Consumer Law Roundtable, which each year brings together consumer law experts from academia, government and NGOs in Australia. So far, the invited speaker has come from the US or Europe, but this year  with Sydney Law School hosting the event in its new building on main campus  we invited two leading consumer law experts from Japan and NZ. Hitotsubashi University Professor Tsuneo Matsumoto has been pivotal to Japan's major consumer law reforms over the last decade, and Kate Tokeley from Victoria University of Wellington is a leading commentator in NZ.

This was the first in an interdisciplinary seminar series initiated by the Transnational Financing and Investment Forum, University of Sydney, which explores issues in international financing and foreign investment law, policy and practices.

This seminar examined highly topical legal and political issues surrounding China's approach to foreign investment. It explored the international politics that flow from China's position as a major destination for inward investment flows, including its approach to foreign investors and its interaction with other states. Given the recent upsurge in Chinese investment out-flows, this seminar also addressed the implications of China's role as a capital-exporting state. The practical legal issues of 'doing business' in China as a foreign investor were also discussed.

Speakers included: Professor Geoffrey Garrett, US Studies Centre, University of Sydney and Vivienne Bath, Sydney Law School; Director of CAPLUS. Commentators included: Jim Harrowell, Partner, Hunt & Hunt; President, Australia China Business Council (NSW) and Dr James Reilly, Department of Government and International Relations.

Judgment and Legal Writing Seminar  East China University of Political Science and Law, Shanghai

This conference was organised by the China Law Society's National Association of Legal Writing Studies in conjunction with universities and lawyer groups in Australia, France and China. The aim was to look at issues in legal writing, especially judgment writing, from a comparative law point of view.

The seminar was a "study day" for Australian delegates with lawyers, academics and judges from France, under the aegis of the Fondation pour le droit continental, a body set up by the French Government to research continental law reform issues.

The seminar organisers were: The National Association of Legal Writing Studies of the China Law Society, the Centre for Asian and Pacific Law at the University of Sydney (CAPLUS), and the China Law Research Group at the University of Technology, Sydney (UTS).

The WTO has two visible functions: settling trade disputes between member states and promoting further liberalisation of international trade. The latter, commonly referred to as DDR, faces many challenges recently amidst rising protectionism. But the former has continued operating and seems to act as a centripetal force preventing the whole WTO system from falling apart. Yet this dispute settlement side to the WTO is far from perfect, and faces its own problems. Although many have praised the "judicialisation" of WTO dispute settlement, it is unlike any of the world's judicial systems. It also differs significantly from dispute resolution through international arbitration. I shall elaborate why and how this is so by drawing on my experiences on the WTO Appellate Body and as an expert in arbitration and civil dispute resolution. Through such comparisons I will explore the source of the WTO's legitimacy in the international community.

Professor Taniguchi is one of the world's most eminent experts in comparative civil procedure and cross-border dispute resolution. He served on the Appellate Body of the World Trade Organization from 2000 until 2007. He has also been active in international arbitration, especially in the ICC and throughout the Asia-Pacific, and is currently president of the Japan Association of Arbitrators. Professor Taniguchi was also former president of the Japanese Association of Civil Procedure, and former Vice-President of the International Association of Procedural Law. He recently retired from Senshu University Law School, and before that taught principally at Kyoto University for 39 years. He has also presented many courses world-wide as a Visiting Professor, including at the University of Michigan, University of California at Berkeley, Duke University, Stanford University, Georgetown University, Harvard University, New York University, the University of Melbourne, Murdoch University, the University of Hong Kong and the University of Paris XII. Cornell Law School, which awarded him a JSD in 1964, recently hosted a WTO conference and special law journal issue commemorating his achievements.

Sydney Law School was privileged to host Professor Taniguchi as a 2009 Distinguished Visitor, and an ANJeL (Australian Network for Japanese Law) Visiting Academic, over July-August 2009. This was a joint CAPLUS and Australian Network for Japanese Law event.

With social controls placed under heavy pressure by the financial crisis, China's government is rethinking its approach to social stability. Analysts inside and outside the elite argue that governance models fixated on 'rigid' stability are adding to policy uncertainty. Dr Kelly will survey some factors contributing to uncertainty in the domestic political scene and assess the chances of a switch to a 'resilient' stability using more advanced governance approaches, including enhanced citizen rights and participation. Given that "limits and uncertainties in China's international trajectory are often rooted in the myriad problems in the country's domestic transition" (Yong Deng), what are the international implications?

David Kelly is Professor of China Studies at the China Research Centre, University of Technology Sydney. He studied social sciences and Chinese studies at the University of Sydney, graduating with a PhD in 1982. He subsequently held teaching and research positions in the Contemporary China Centre, ANU, the Australian Defence Force Academy, and the East Asian Institute, National University of Singapore.

Professor Gillian Triggs, Dean of Sydney Law School, invited guests to join Vivienne Bath, Robin Burnett, Luke Nottage and Kent Anderson to celebrate the launch of their new books. The books were launched by The Honourable James Spigelman AC, Chief Justice of NSW. A copy of Chief Justice Spigelman's address is available here.

Law of International Business in Australasia by Robin Burnett and Vivienne Bath.

This book is a successor to Robin Burnett's Law of International Business Transactions. It provides an up-to-date analysis of the legal environment for international trade and covers the changes made to payment and letters of credit by reason of the adoption of the UCP 600, which became effective in 2007, and other means of payment which are currently used; the provisions and possible adoption of the UNCITRAL Draft Convention on the Carriage of Goods Wholly or Partly by Sea; recent developments in the law relating to international sale of goods; the question of international arbitration and other means of dispute resolution; and the strategies and issues of international operations while incorporating and building on the comprehensive information and material in the previous book. It will assist practitioners and students in their understanding of the legal and practical aspects of international and overseas trade and operations.

The 'lost decade' of economic stagnation in Japan during the 1990s has become a 'found decade' for regulatory and institutional reform. Nowhere is this more evident than in corporate law. In 2005, for example, a spate of reforms to the Commercial Code culminated in the new Company Act, a statute promising greater organisational flexibility and shareholder empowerment for Japanese corporations competing in a more globalised economy. But does this new law herald a more 'Americanised' system of corporate governance? Has Japan embraced shareholder primacy over its traditional loyalty to other key stakeholders such as 'main banks', core employees, and partners within diffuse corporate (keiretsu) groups? This book argues that a more complex 'gradual transformation' is unfolding in Japan - a process evident in many other post-industrial economies.

To celebrate the move of the Centre to the Camperdown campus, CAPLUS hosted a cocktail reception for staff across the University whose work and/or research focuses on the Asia-Pacific region.

30 April 2009

Talkback - Death Penalty in Asia

To celebrate the official opening of the new Faculty of Law building, CAPLUS presented an audience-led discussion on the death penalty in various parts of Asia, including Indonesia, Japan and China, with a focus on the Bali 9 case in Indonesia and international law relating to the death penalty. Speakers included Vivienne Bath, Dr Simon Butt, Dr Salim Farrar and Assoc Prof Luke Nottage.

Indonesia's Constitutional Court, established in 2003, is the first Indonesian court granted power to exercise constitutional review. In post-Soeharto Indonesia, this is an important function indeed, particularly given that Indonesia now has a world-standard Bill of Rights in its Constitution. The Constitutional Court has quickly become Indonesia's most respected judicial institution - a model of judicial reform for other Indonesian courts to follow.

Professor Jimly Asshiddiqie is one of Indonesia's best known legal personalities and scholars. He was founding Chief Justice of Indonesia's Constitutional Court from 2003-2008. Previously, he had served as senior legal advisor to Indonesia's parliaments and was instrumental in Indonesia's constitutional reform after Soeharto's resignation in 1998. He is also Professor of Law at the University of Indonesia. Professor Asshiddiqie is widely considered Indonesia's most accomplished constitutional law scholar.

15 Feb 2009

ANJeL Workshop: 'Who Judges Japanese Law?'

In November 2008, ANJeL's edited book, Corporate Governance in the Twenty-First Century: Japan's Gradual Transformation, was published by Edward Elgar. The book features essays by ANJeL members who are leading academics and lawyers in their respective fields. ANJeL is now in the initial stages of planning a follow-up volume. Tentatively titled Who Governs Japanese Law? Popular Participation in Japan's Legal Process, the book examines the role of the community in adjudicative and other legal processes in Japan. The book uses the long-standing debate about who governs Japan as its starting point, but focuses less on the bureaucratic control of the economy and more on popular constraints over elite control of the legal system. Some examples of this include the introduction of the new saiban'in system in Japanese criminal justice, the involvement of union and management representatives in the management of labour disputes as well as greater involvement of shareholders in corporate governance decision-making.

ANJeL welcomes any members who have an interest in the involvement of the community in legal matters to contribute to this book project by attending an informal workshop (time and venue to be confirmed). Participants are asked to prepare a two-page abstract of their proposed contribution so that ideas may be shared in preparation of a book proposal to be submitted to Edward Elgar or other publishers. Enquiries and abstracts should be directed to ANJeLinfo@gmail.com.

14 Feb 2009

7th ANJeL International Conference: 'Crisis and the Law in Japan and Beyond'

ANJeL will be hosting its 7th international conference on Japanese law on Saturday 14 February 2008 at the Tokyo Campus of Ritsumeikan University, tentatively from 2-5 pm. The theme of the conference is Crisis and the Law in Japan and Beyond. The world is gripped by a financial crisis of unprecedented scale. Major financial institutions, such as Lehman Brothers, have spectacularly failed. Others, such as Freddie Mac and Fannie Mae, have been saved through nationalisation. Stock markets have plunged. Consumer prices are rising. Business confidence is at all-time lows. Japan is also experiencing crises beyond the economic. Prime Minister Aso has taken over the presidency of an increasingly unstable Liberal Democratic Party after his predecessors Abe and Fukuda lasted less than a year each as leaders. A series of unprovoked murders have led to speculation that a lack of job security is leading to the alienation of Japanese youth. What is the role of law in these (and other) crises? Is it cause or cure, solution or problem? How do Japanese institutions and processes compare with those in other countries in dealing with such crises?

This CLE Seminar will be held at the Tokyo Campus of Ritsumeikan University and will feature updates by Tokyo-based practitioners and ANJeL directors on: International contract law (45 minutes); International dispute resolution (45 minutes); Corporate and securities law (45 minutes); and International tax law, including the Australia-Japan double tax treaty (45 minutes). The CLE Seminar will deliver academically and practically relevant up-to-date information to meet the professional needs of lawyers who work at the interface of Australian and Japanese law or who are interested in moving into this market.

21 July 2008

CAPLUS Seminar Series on Foreign Investment and Corporate Governance in AsiaSeminar 4: 'FDI and Corporate Governance in Japan'

Japan has encouraged and achieved significant growth in inbound FDI over the last decade, including Australian investments in skifields and airports. Outbound FDI has also grown, especially in the Asia-Pacific, and is increasingly underpinned by investment treaties or FTAs  including the FTA now being negotiated between Australia and Japan. The combined impact helped Japan emerge in 2002 from a 'lost decade' of economic stagnation over the 1990s. That became, anyway, a 'found decade' for regulatory and institutional reform. Nowhere is this more evident than in corporate law. In 2005, for example, a spate of reforms to the Commercial Code culminated in the new Company Act, a statute promising greater organisational flexibility and shareholder empowerment for Japanese corporations competing in a more globalised economy. But does this new law herald a more 'Americanised' system of corporate governance? Has Japan embraced shareholder primacy over its traditional loyalty to other key stakeholders such as 'main banks', core employees, and partners within diffuse corporate (keiretsu) groups? The book previewed in this Seminar (Corporate Governance in the 21st Century, co-edited by Luke Nottage and including chapters by Geread Dooley and Souichirou Kozuka) argues that a more complex 'gradual transformation' is unfolding in Japan. Such a process is also evident in many other post-industrial economies.

24 Jun 2008

CAPLUS Seminar Series on Foreign Investment and Corporate Governance in AsiaSeminar 2: 'FDI and Corporate Governance in China'

Speaker: Vivienne Bath, Faculty of Law, The University of Sydney.

The legal environment for business in China is changing rapidly, with the promulgation of laws in 2006 and 2007 strengthening the rights to personal property, creating a bankruptcy regime, introducing a comprehensive law on anti-competitive conduct and implementing laws designed to provide additional protection for Chinese workers. After almost 30 years of encouraging foreign investment, has the atmosphere in China moved away from the Open Door policy and towards a new form of protectionism?

This seminar addressed the recent changes in Chinese business-related legislation and focused on the question of Chinese government policies towards foreigners and foreign investment.

The World Bank's "Doing Business" reports rank more than 150 countries around the world for the efficiency of their business laws. Ten indicators (including enforcing contracts, trading across borders, obtaining credit and starting a business) were chosen by the World Bank for this purpose, and the answers from thousands of questionnaires tabulated. China and Indonesia, among others, rank poorly on various of the World Bank's indicators. Are these rankings accurate or justified? Are the rankings useful? What steps towards law reform and economic efficiency have China and Indonesia taken? How do the courts and dispute resolution mechanisms in these countries function?

On 6 July 2007, the Centre for Asian and Pacific Law at the University of Sydney and the Law Council of Australia will hosted an in-depth conference on law reform and economic efficiency in China and Indonesia, examining the issues raised by the World Bank reports and other aspects of law and law reform in these two important jurisdictions.

Michael Ahrens from Transparency International and Eric Knight (former Sydney Law School student) gave a presentation on corporate corruption. The presentation focused on a recent scandal surrounding the aborted investigations for the sake of "national security" by the UK government into a British company, BAE Systems, and its alleged corrupt dealings for the sale of aircraft to the Saudi Arabian government. The presenters looked into the UK's (and other signatories') obligations under the OECD Convention on Combating Bribery of Foreign Public Officials and whether national security interests may justify a breach of a state's obligations under that convention.

Professor Yu Shicheng is the President of Shanghai Maritime University, and, in addition to his other activities, serves as an arbitrator and lawyer on the China Maritime Arbitration Commission. He specialises in maritime and international shipping and has played a leading role in relation to the Chinese Maritime Law, Port Law and International Shipping Code.